Citation Nr: 9807701
Decision Date: 03/16/98 Archive Date: 04/02/98
DOCKET NO. 94-47 068 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUES
1. Entitlement to an increased evaluation, in excess of 30
percent, for hypertrophic arthritis of the left knee with a
history of synovitis, for the period December 10, 1993,
through July 15, 1996.
2. Entitlement to an increased evaluation, in excess of 40
percent, for hypertrophic arthritis of the left knee with a
history of synovitis, for the period July 15, 1996, through
December 11, 1996.
3. Entitlement to an increased evaluation for residuals of a
total right knee replacement, currently rated 40 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. E. Smith, Counsel
INTRODUCTION
The veteran had active military service from February 1948 to
February 1952.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a May 1994 rating decision by the
Hartford, Connecticut, Regional Office (RO) of the Department
of Veterans Affairs (VA). This decision denied the veteran
entitlement to increased evaluations for service-connected
bilateral knee disabilities. A subsequent rating decision by
the RO in April 1995, granted the veteran an increased
evaluation for a service-connected left knee disability from
20 percent to 30 percent, effective from December 1993.
This case was remanded by the Board in February 1997 for
further evidentiary development. While the case was in
remand status, the disability evaluation for the veteran's
left knee disability was increased from 30 percent to 40
percent, effective from July 1996.
In December 1996, the veteran underwent an elective left
total knee replacement at a VA medical facility. The RO
granted a temporary total postsurgical convalescent rating
for the period December 12, 1996, through January 31, 1997,
pursuant to the provisions of 38 C.F.R. § 4.30, followed by a
100 percent schedular rating pursuant to Diagnostic Code 5055
for one year after termination of the temporary total post
surgical convalescent rating. The ending date of the 100
percent schedular rating is January 31, 1998, and the RO has
granted a total disability rating for compensation purposes
based on individual unemployability due to service-connected
disabilities, effective February 1, 1998.
In November 1996 the veteran appeared and offered testimony
before the undersigned member of the Board. A transcript of
the veteran's hearing testimony on that occasion is contained
within his claims file.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service connected bilateral
knee disabilities are more disabling than currently evaluated
by the RO throughout the periods in question. The veteran
further maintains that he experiences constant knee pain and
has since had a resulting limited level of mobility.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against an evaluation greater than 40 percent for
the veteran's service-connected right knee disorder, status
post total right knee replacement, and is against an
evaluation greater than 40 percent for the left knee disorder
for the period July 15, 1996, through December 11, 1996. The
evidence does, however, support an increased rating of 40
percent for the veteran's service-connected left knee
disorder for the period December 10, 1993, through July 14,
1996.
FINDINGS OF FACT
1. During the period December 10, 1993, through July 14,
1996, the veteran's service-connected left knee disorder was
shown to be productive of severe disability; considering
limitation of motion and pain there was left knee disability
equivalent to extension limited to 30 degrees.
2. During the period July 15, 1996, through December 11,
1996, knee findings included range of motion of zero to 100
degrees, effusion and severe pain and feelings of instability
and locking; considering limitation of motion and pain there
was left knee disability equivalent to extension limited to
30 degrees.
3. The veteran's residuals of a status post total right knee
replacement are less severe than those on the left, and
consist of mild effusion, laxity of the lateral ligaments,
pain causing discomfort in ambulation, standing and sitting,
and decreased strength of the musculature associated with
ambulation.
CONCLUSIONS OF LAW
1. The criteria for an assignment of a rating of 40 percent
for the veteran's service-connected left knee disorder for
the period December 10, 1993, through July 14, 1996, are met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.10,
4.40, 4.45 and Part 4, Codes 5256, 5257, 5260, 5261, 5262
(1996).
2. A rating in excess of the 40 percent rating in effect for
the veteran's service-connected left knee disorder for the
period July 15, 1996, through December 11, 1996, is not
warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.10, 4.40, 4.45 and Part 4, Codes 5256, 5257, 5260, 5261,
5262 (1996).
3. A rating in excess of 40 percent for the veteran's status
post total right knee replacement is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.10,
4.40, 4.45 and Part 4, Codes 5055, 5256 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, we note that we have found that the veteran's
claims are well grounded within the meaning of 38 U.S.C.A.
§ 5107(a). That is, we find that he has presented a claim
which is not inherently implausible. We are also satisfied
that all relevant facts have been properly developed and that
the clinical data on file are sufficient for us to reach a
fair and equitable determination of the matter at hand.
The record regarding the veteran's left knee disability shows
that, during the period in question, this disorder has been
variously rated by the RO subsequent to a left total knee
replacement in December 1996 and, as such, the Board has
addressed this issue as reflected on the title page.
I. Factual Background
The veteran's service medical records reveal that, in April
1948, the veteran sustained internal derangement of the left
knee as the result of wrestling with a fellow service member.
The injury was treated by immobilization for approximately
one month in a plaster cylinder. The veteran was then
returned to duty.
In September 1950, the veteran sustained a gunshot wound to
the right knee joint as a result of enemy small arms fire.
His injury caused an incomplete fracture of the tibia and
subsequent traumatic arthritis with limitation of flexion.
There was no nerve or artery involvement. Following a period
of hospitalization and treatment to include orthopedic
surgery, the veteran was separated from service on a
recommendation of a physical evaluation board.
On the veteran's initial postservice VA examination in March
1952, the veteran complained of bilateral knee discomfort
with left knee swelling and pain and right knee instability.
On physical examination, bilateral swelling was demonstrated.
The left knee had a normal range of motion with no findings
of definite instability on testing. The right knee revealed
an entrance wound scar 3/8 of an inch diameter just lateral
to the patella, with 1/2 x 1 inch exit scar deeply adherent
and depressed on the interior aspect of the upper half of the
tibia. Flexion of the right knee was limited to 60 degrees.
Extension was nominal. There was obvious instability. An X-
ray of the right leg was interpreted to reveal residual
deformity due to an old fracture of the upper third of the
tibia. There was noted deformity of the lateral condyle of
tibia with residual bone sclerosis and osteoarthritic changes
at the knee joint. Small metallic fragments were noted
within the knee joint. An X-ray of the left knee showed no
bony pathology, deformity or soft tissue changes.
By a rating action, dated in April 1952, the RO established
service connection for residuals of a gunshot wound to the
right knee with instability rated 30 percent disabling under
Diagnostic Code 5257; traumatic arthritis of the right knee
with metallic fragments due to a gunshot wound rated 10
percent disabling under Diagnostic Code 5010. Service
connection was also established for synovitis of the left
knee due to chronic left knee sprain, rated 10 percent
disabling under Diagnostic Code 5020.
In a rating decision dated in January 1982, the disability
evaluation of the veteran's service-connected left knee
disability was increased from 10 percent to 20 percent,
effective from June 1980. This action followed a VA
examination in December 1981 which was significant for
findings consistent with a possible left knee lateral
meniscal injury with indications of instability.
Private treatment records received in September 1992, show
that, in July 1992, the veteran underwent a total right knee
replacement at a private medical facility due to clinical and
radiological findings of totally disabling degenerative
arthritis of the right knee. By a rating action of September
1992, the RO changed the description of the veteran's
service-connected right knee disability to a total right knee
replacement. Based on the private treatment records, the RO
assigned a 100 percent temporary total rating pursuant to
38 C.F.R. § 4.30 from July 1992 to September 1992 and
thereafter, a schedular rating of 100 percent from September
1992 to September 1993 under Diagnostic Code 5055, which
mandates a 100 percent rating for one year following
implantation of a knee prosthesis. The RO then assigned a
protected 40 percent disability evaluation, from September
1993, for the status post right knee replacement under
Diagnostic Code 5055-5262 pending further VA examination in
December 1993.
On a VA examination in December 1993, the veteran was found
to walk with the use of a cane. Examination of the right
knee showed a straight incisional scar measuring
approximately 16 centimeters in length. The right knee was
somewhat swollen and there was considerable atrophy of the
right quadriceps. The knee had full extension and flexion to
95 degrees. There was medial and lateral joint line
tenderness as well as pain on patellar compression.
Examination of the left knee showed dramatic knee effusion.
Knee range of motion was from full extension to 95 degrees of
flexion. There was laxity to the anterior cruciate ligament
of approximately 7-millimeters with the drawer maneuver.
With varus and valgus stress, the knee opened 4- to 5-
millimeters, both medially and laterally. The patella
tracked well. On patellar compression, there was
considerable pain with medial and lateral joint line and
subpatellar palpation. An X-ray of the right knee showed a
total knee replacement in good position. The patella had not
been replaced and showed significant arthritis. The left
knee showed severe advanced degenerative osteoarthritis,
particularly the patellofemoral joint. The examiner reported
that the veteran lived with constant pain and that he had
considerable disability not detected by the range of motion
of the knee.
In April 1994, two statements were received from the
veteran's private physician, Thomas P. Greco, M.D. Dr. Greco
reported on a follow-up examination provided to the veteran
for his bilateral knee complaints. Dr. Greco said that the
veteran had persistent ongoing problems with his knees with
significant right knee disability and worsened deterioration
in the left knee. He further indicated that the veteran
experienced increased disability ambulating, with going up
and down stairs, and with range of motion. He also reported
that the veteran had marked bogginess to the knees,
bilaterally, and a large left knee effusion. He indicated
the veteran required medication for his knee disabilities to
include Daypro.
In a statement dated in October 1994, Dr. Greco reported that
the veteran's left knee had given him much more pain,
instability and limitation of motion as well as marked
swelling with inability to flex the knee beyond 90 degrees.
He also indicated also that the veteran experienced left knee
instability both medially and laterally in his collateral
ligaments. Dr. Greco opined that the veteran has had
symptoms of instability with giving out of his knee
suggesting marked internal derangement, severe in quality,
giving out regularly and associated with severe and marked
pain. He added that at this point he believed that the
veteran's disability was greater than 20 percent and
suggested at least a 40 percent disability evaluation since
it was certainly in worse condition than his right knee in
terms of pain and instability. He added that the veteran's
left knee was also in need of a joint replacement.
At a personal hearing on appeal before a hearing officer at
the RO in January 1995, the veteran presented testimony
related to his claim. The veteran testified that following
his total right knee replacement, he has had severely painful
right knee motion and weakness. With regard to his left
knee, the veteran related that his knee joint was completely
swollen and unstable to the point where he was unable to
climb more that two to three stairs at a time. The veteran
also said that prior to his right total knee replacement he
wore a brace on that joint for a good 20 years. The veteran
further indicated that his private physician, Dr. Greco, had
not recommended the use for a brace for the left knee as he
believed a brace would not be helpful. The veteran testified
that his left knee has a tendency to "slip out" on a daily
basis.
At his January 1995 hearing, the veteran submitted into
evidence follow-up treatment records showing Dr. Greco had
found large left knee effusion, severe left knee
osteoarthritis and an inability to flex the left knee beyond
100 degrees on examination of the veteran in December 1994.
By a rating action, dated in April 1995, the disability
evaluation for the veteran's left knee disability was
increased from 20 to 30 percent under the provisions of
Diagnostic Code 5010-5257, effective from December 1993. The
40 percent disability evaluation for the veteran's service-
connected right knee disorder was continued.
In a May 1995 statement, Dr. Greco reported that he had seen
the veteran that month and that the veteran had expressed
concern that his left knee disability was increased only to
30 percent disabling when his right knee, which was working
better, was rated at 40 percent. The veteran expressed to
Dr. Greco his belief that his left knee was still underrated
as he had difficulty ambulating, standing and even sitting
for brief periods of time in a static position because of
severe pain.
On a VA orthopedic consultation in February 1996, the veteran
complained of sharp, radiating left knee pain. On
examination, there was no effusion and/or swelling. Range of
motion of the left knee was from 10 to 90 degrees with pain.
There was no instability. The veteran declined undergoing
left knee surgery.
On an April 1996 follow-up evaluation, Dr. Greco reported
that the veteran's left knee had significant swelling with
two- to three-plus effusion and flexion only to about 90
degrees. The veteran had significant pain along the medially
and lateral joint compartment. Left knee pain with ongoing
difficulties with effusion was the diagnostic impression.
Dr. Greco further noted that the veteran was unable to take
significant anti-inflammatory medications because of problems
with ulceration and, as a result, has had worsening knee
pain.
At his hearing at the RO before the undersigned member of the
Board in November 1996, the veteran described problems with
his knees and current symptomatology. The veteran said he
continues to experience right knee swelling, pain and
occasional "locking". He further indicated that his left
knee was extremely painful and that he was unable to kneel or
squat on his knees. The veteran said that he was forced to
retire on disability from the Post Office due to his
bilateral knee disabilities after 30 years and as a result
had obtained a reduced pension. The veteran testified that
he had been scheduled by the VA for a total left knee
replacement in December 1996.
VA outpatient treatment records compiled between July 1996
and November 1996, and received in November 1996, show that
in July 1996 the veteran was found on an orthopedic follow-up
consultation to have a healed scar over the right lower
extremity with right knee flexion to 90 degrees and full
extension, varus/valgus stability, normal sensation and motor
strength. The left knee was neurovascularly intact with
decreased sensation over the lateral femoral cutaneous
distribution. Flexion was to 100 degrees and extension to
minus 5 degrees. There was positive varus/valgus stability,
swelling, tenderness and effusion. In October 1996, the
veteran complained of left knee pain. Examination revealed
full left knee extension and flexion to 95 degrees with
moderate effusion and positive patellofemoral crepitus. In
November 1996, the veteran's left knee demonstrated effusion,
medially and lateral joint lying tenderness, patellofemoral
pain and crepitus and a range of motion from 0 to 100
degrees.
In December 1996, the veteran was admitted to a VA medical
facility for elective total left knee replacement surgery.
On admission, examination of the left knee showed 5 to 95
degrees range of motion with one plus valgus instability.
The right knee showed a well-healed scar with motion from 5
to 95 degrees. There was some slight left lateral thigh
numbness near the knee. On December 12, 1996, the veteran
underwent left knee replacement surgery and reportedly did
well postoperatively albeit with some swelling. A
postoperative X-ray of the left knee showed good placement of
the prosthesis.
On a VA examination in April 1997, the veteran reported
continuing severe left knee pain following surgery in
December 1996 as well as daily swelling and paresthesias on
physical examination. The left knee exhibited a healed
vertical 20-centimeter scar over the anterior aspect. There
was moderate left knee effusion compared to mild effusion on
the right and the left knee appeared slightly warmer than the
right. The range of motion of the left knee was 0 to 90
degrees with severe pain on extreme flexion. There was clear
laxity on the lateral ligaments with varus stress but no
evidence of medial ligament laxity. The right knee also
demonstrated flexion of only 90 degrees with extension to
zero degrees. It was observed that there was not nearly the
amount of pain at full flexion as there was with the left
knee. Significant lateral laxity and evidence of medial
laxity was also noted. Visibly mild bilateral quadriceps
muscle atrophy was also found. The examiner noted as an
impression that the veteran continued to have severe ongoing
chronic pain in both knees, especially on the left. He added
that there was clear evidence of some lateral ligament laxity
which would give the veteran a significant sensation of
subluxation with any sort of ambulation, especially with the
use of stairs. He also added that the veteran clearly has
ongoing disability related to his knees with chronic pain.
He indicated that the veteran clearly could not stand for
prolonged periods in any sort of occupation and would also
have difficulty sitting for prolonged periods.
By a rating decision, dated in May 1997, the RO increased the
disability evaluation of the veteran's left knee from 30 to
40 percent disabling effective from July 15, 1996, to
December 11, 1996, from 40 percent to 100 percent disabling,
effective from December 12, 1996, to February 1, 1998, and,
prospectively, from 100 percent to 60 percent disabling
effective from February 1, 1998. The veteran was also
granted prospective entitlement to a total rating based on
individual unemployability due to his service-connected
disabilities effective from February 1, 1998, as well as
Chapter 35 entitlement effective from December 12, 1996.
II. Analysis
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
The VA has a duty to acknowledge and consider all regulations
which are potentially applicable through the assertions
initially raised in the record and to explain the reasons and
bases for its conclusions. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). These regulations include, but are not
limited to, 38 C.F.R. § 4.1 and 4.2. Also, 38 C.F.R. § 4.10
provides that, in cases of functional impairment, evaluations
must be based upon lack of usefulness of the affected parts
or systems, and medial examiners must furnish, in addition to
the etiological, anatomical, pathological, laboratory and
prognostic data required under ordinary medical
classification, full description of the effects of the
disability upon the person's ordinary activity.
In addition, 38 C.F.R. § 4.40 requires consideration of
functional disability due to pain and weakness. As regards
to joints, 38 C.F.R. § 4.45 notes that the factors of
disability reside in reductions of their normal excursion of
movements in different planes. The considerations include
more or less movement than normal, weakened movements, excess
fatigability, incoordination, impaired ability to execute
skilled movements smoothly, pain on movement, swelling,
deformity or atrophy of disuse, instability of station,
disturbance of locomotion, and interference with sitting,
standing or weight bearing.
The evaluation of the same disability or manifestations under
a different diagnosis is to be avoided. 38 C.F.R. § 4.14.
Rather, the veteran's disability will be rated under the
diagnostic code which allows the highest possible evaluation
for the clinical findings shown on objective examination.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
A. The Left Knee Disability from December 10, 1993, through
July 14, 1996.
The RO has raised the rating for the service-connected left
knee disorder to 30 percent disabling for the above period
based on the contemporaneous clinical findings of record. A
30 percent rating is provided for a knee disorder when it is
ankylosed at a favorable angle, in full extension or in
slight flexion between zero degrees and 10 degrees.
Diagnostic Code 5256. A 30 percent disability rating is also
provided for a knee disorder when it is productive of severe
recurrent subluxation or lateral instability of the knee or
when flexion is limited to 15 degrees or when extension is
limited to 20 degrees. Diagnostic Codes 5257, 5260, 5261.
To warrant a 40 percent evaluation for a knee disorder,
there must be ankylosis of the knee in flexion between 10 and
20 degrees or there must be limitation of extension of the
knee to 30 degrees. Diagnostic Code 5256, 5261. Impairment
of the tibia and fibula involving nonunion with loose motion
requiring a brace also warrants a 40 percent evaluation.
Diagnostic Code 5262.
The full range of flexion of the knee is to the 140-degree
position. A full range of extension of the knee is to the
zero-degree position. 38 C.F.R. § 4.71 Plate II (1996). It
is apparent that, during the period December 10, 1993,
through July 15, 1996, the veteran's left knee was not
ankylosed in any position because a significant range of
motion was described on VA examination in December 1993 and
thereafter by both his private physician and VA orthopedic
examiners up to and including his examination for admission
to a VA medical facility for a total left knee replacement
surgery in December 1996. In December 1993, there was full
extension of the left knee to zero degrees. In February 1996
there was no greater than 10 degrees' loss of full extension
and in July 1996 hyperextension to 5-degrees was recorded.
Extension was never described during this period as being
limited to a 30-degree position and there is no indication in
the clinical record the left knee impairment and/or
instability was so severe as to require a knee brace.
As noted above, in determining functional impairment, the VA
has a duty to include an evaluation of the veteran's pain.
38 C.F.R. § 4.40. In DeLuca v. Brown, the United States
Court of Veterans' Appeals (Court) held that 38 C.F.R. § 4.40
permits consideration of a higher rating based on a greater
limitation of motion due to pain on use. DeLuca v. Brown, 8
Vet. App. 202, 206 (1995). The Board observes that during
this period the veteran's private physician consistently
indicated that the veteran's left knee disability was
manifested by complaints of severe pain. He noted in May
1995 that such pain resulted in difficulty ambulating,
standing and even sitting for brief periods of time.
Earlier, the December 1993 VA examiner stated that the
measured range of motion “does not detect the degree of
disability that this gentleman has,” suggesting the very
situation that DeLuca envisioned. Considering this, the
Board finds that the left knee impairment is equivalent, in
light of the veteran's pain, to extension limited to 30
degrees, so as to warrant a 40 percent disability rating
under Diagnostic Code 5261 during the period in question.
B. The Left Knee Disability from July 15, 1996, through
December 11, 1996
Under Diagnostic Code 5256, favorable ankylosis of the knee
in full extension or in slight flexion between 10 degrees and
20 degrees warrants a 40 percent evaluation; ankylosis in
flexion between 20 degrees and 45 degrees warrants a 50
percent evaluation; and extremely unfavorable ankylosis in
flexion at an angle of 40 degrees or more warrants a 60
percent evaluation. 38 C.F.R. § Part 4 Code 5256.
Limitation of extension of the knee to 30 degrees warrants a
40 percent evaluation and limitation of extension to 45
degrees warrants a 50 percent evaluation.
The RO has evaluated the veteran's left knee disability as 40
percent disabling during this period under the criteria of
Diagnostic Code 5262. The highest evaluation available under
that regulatory provision is 40 percent for impairment of the
tibia and fibula manifested by nonunion or loose motion
requiring a brace. 38 C.F.R. § Part 4, Diagnostic Code 5262.
The Board finds that there is simply no objective clinical
evidence to support a schedular evaluation in excess of 40
percent for the veteran's left knee symptoms during this
period, regardless of the diagnostic criteria involved under
the appropriate regulations and diagnostic codes.
Notably, the clinical evidence of record indicates that, even
considering the veteran's complaints of pain, range of motion
of the left knee in December 1996 was shown to be from 5 to
95 degrees. Thus, under the applicable diagnostic code for
limitation of motion and not withstanding the additional
functional disability attributable to pain, the veteran
clearly had remaining significant left knee functioning.
However, when all of his left knee symptoms are taken into
account prior to his December 1996 total left knee
replacement, the Board agrees with the RO that it is most
appropriate to evaluate the veteran's left knee disability as
40 percent disabling either by analogy to the criteria for
Diagnostic Code 5262 or under the provisions of 5261 relating
to limitation of extension. It is noted that the maximum
schedular evaluation under Diagnostic Code 5262 is 40
percent. Although the veteran did not have a nonunited bone,
he did have symptoms requiring a brace and use of crutch as
well as added functional limitation beyond his measured range
of motion imposed by pain. However, greater impairment such
as to warrant a higher evaluation was not demonstrated.
Extension was not limited to 45 degrees and ankylosis was not
demonstrated.
C. The Right Knee Disability, rated 40 percent
Replacement of either knee joint with a prosthesis warrants a
100 percent rating for a one-year period following
implantation of the prosthesis. This period commences at the
conclusion of the initial grant of a total rating for one
month following hospital discharge pursuant to 38 C.F.R.
§ 4.30 (1996). Thereafter, a 60 percent evaluation is
warranted if there are chronic residuals consisting of severe
pain for motion or severe weakness in the affected extremity.
With intermediate degree of residual weakness, pain or
limitation of motion, the disability will be rated by analogy
to Diagnostic Codes 5256, 5261 or 5262. The minimum
evaluation is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code
5055.
The veteran's service-connected right knee disorder, status
post knee replacement, as shown by the most recent VA
examination is manifested by significant lateral laxity and
evidence of quadriceps atrophy equal to that of the left knee
status post knee replacement, as well as chronic pain
impairing the veteran's ambulation, ability to sit and stand.
His symptoms have consistently been less severe than those on
the left during this period. After careful and longitudinal
consideration of the all procurable and assembled data,
including the veteran's hearing testimony, the Board
concludes that the chronic residuals of the veteran's
service-connected right knee disorder, status post knee
replacement, are analogous to limitation of extension to 30
degrees, warranting a 40 percent rating (as currently
assigned), but not more. Here we observe that under 38
C.F.R. § 4.68 (1996), the combined rating for disabilities of
an extremity shall not exceed the rating for amputation of
that extremity at the elective level were amputation to be
performed. Under diagnostic code 5162, the rating for an
amputation at the middle or lower third of the thigh is 60
percent. Therefore, the rating for a knee disorder may not
exceed 60 percent. The minimum rating for a replaced knee,
as stated above, is 30 percent. The Board finds that the
current 40 percent rating adequately reflects the pain and
impairment associated with this disorder, which is less
disabling than that on the left but more than minimally
disabling.
ORDER
An increased evaluation of 40 percent is granted for
hypertrophic arthritis of the left knee with a history of
synovitis for the period December 10, 1993, through July 14,
1996, subject to the laws and regulations governing the award
of monetary benefits.
An increased evaluation in excess of 40 percent for
hypertrophic arthritis of the left knee with a history of
synovitis for the period July 15, 1996, through December 11,
1996, is denied.
An increased evaluation in excess of 40 percent for residuals
of a total right knee replacement is denied.
J. E. Day
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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